U.S. Judge Stresses Reliance on Constitution’s ‘Original Intent’

U.S. Circuit Judge Robert Bork, a judicial conservative considered a leading candidate to fill the next vacancy on the U.S. Supreme Court, on Monday joined an unusual public debate over the proper way for judges to interpret the Constitution.

Speaking at the University of San Diego, Bork asserted that a reliance on the “original intent” of the Constitution’s framers is “essential to prevent courts from invading the proper domain of democratic government.”

Bork, a longtime Yale University law professor appointed by President Reagan to the U.S. Circuit Court for the District of Columbia, appeared to be setting out an intellectual framework favoring the restrained view of the judiciary’s role strongly advocated in recent months by Atty. Gen. Edwin Meese III.

By grounding their rulings in the Constitution’s original intent, judges will not necessarily decide all cases “the way the framers would have,” Bork said.

But even when they diverge, “most importantly, judges will confine themselves to the principles the framers put into the Constitution,” he said. “Entire ranges of problems will be placed off limits to judges, thus preserving democracy in those areas where the framers intended democratic government.”

A judge who overgeneralizes the principles enunciated in the Constitution to make decisions outside its intended bounds “deprives the democratic majority of its freedom,” Bork said.

In July and again last week, Meese--who is on leave from the USD faculty--lashed out at activist judges whose rulings on religion, abortion, criminal law and states’ rights, he said, have transformed constitutional law to reflect their own moral and policy preferences.

Supreme Court Justices William Brennan and John Paul Stevens have taken the unusual step of responding to Meese and other Administration critics of judicial activism, defending the judiciary’s role in adapting the Constitution to reflect changes in society.

Bork made only sidelong references to the high-profile debate, but his interest in joining the fray was reflected in his last-minute decision to revise what was a scheduled speech on economic rights to address what his Washington aides and USD staff members termed a more timely subject. His speech inaugurated the Sharon Siegan Memorial Lecture Series at the USD Law School.

While Meese has attacked a range of Supreme Court decisions as being in conflict with the Founding Fathers’ intent, Bork focused his criticism on broad interpretations of the Bill of Rights and the 14th Amendment’s “due process” clause.

He singled out a decision written by the late Justice William O. Douglas, an ardent liberal in his 36 years on the high court, as an example of stretching the Bill of Rights “beyond anything dreamed of by the framers.” The decision, in Griswold vs. Connecticut, struck down that state’s ban on the use of contraceptives by relying on a general “right of privacy” in the Bill of Rights not explicitly stated in the Constitution.

Similarly, Bork condemned an interpretation of the 14th Amendment’s “due process” guarantee that allows courts to “review virtually all regulations of human behavior.”

Such an interpretation turns the judiciary into legislators, economists and political philosophers, Bork said--”tasks that are not only beyond its competence but beyond any function that can conceivably be called judicial.”

Also, during a question period after his remarks, Bork said he did not “think anybody supposes” that the Supreme Court’s decision in Roe vs. Wade, which legalized abortion, was based on the original intent of the Constitution’s framers.

Bork, who made headlines in 1973 as solicitor general of the United States when he fired Watergate special prosecutor Archibald Cox on orders from then-President Richard Nixon, seemed Monday to try to bring the two sides in the constitutional debate closer together.

He quoted a remark by Brennan that reflected the liberal justice’s recognition that judges must base their decisions in law: “Justices are not platonic guardians,” he quoted, “appointed to wield authority according to their personal moral predilections.”

Bork also took a slap at those who would interpret the Constitution so strictly as to make it unresponsive to the times.

“Courts must not hesitate to apply old values to new circumstances,” he said. “A judge who refuses to deal with unforeseen threats to an established constitutional value . . . fails in his judicial duty.”